Sunday, 9 April 2017

Whether recovery panchnama becomes inadmissible in evidence if it is not signed by accused?

It was then argued that the recovery Panchnama (Exh.76A) did
not contain signature of the accused and for which reason the same
was inadmissible. Even this submission does not commend to us.
In that, no provision has been brought to our notice which
mandates taking signature of the accused on the recovery
Panchnama. Admittedly, signature of accused was taken on the
statement recorded under Section 27 of the Evidence Act (Exh.76
and 77 respectively). The statement of accused No.3 (Exh.77) bears
his signature. Therefore, even this argument does not take the
matter any further.
 [REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 467/2010
Kishore Bhadke 
Vs.
State of Maharashtra 
Dated:Dated: January 3, 2017.

Citation: 2017 ALLMR(CRI)1316 SC


These appeals are filed by the original accused No.1
(Crl.A.No.854/2010), accused No.3 (Crl.A.No.467/2010) and
accused No.6 (Crl.A.No.11/2015). They were tried for offence
punishable under Sections 364, 302, 201 read with 34/120-B of
Indian Penal Code (IPC) along with four other accused.
2. The prosecution case is that, on 10th May 2003, Shriniwas son
of Wasudeorao Tonpe lodged a report (Exh.154) that his elder
brother Raman has gone missing since morning of 8th May 2003.
On the basis of that report, a missing Register entry was effected by
the Police Station, Narkhed, District Nagpur (Maharashtra). On the
next day i.e. 11th May 2003 another brother of the missing person,
Madan son of Wasudeorao Tonpe lodged a second report (Exh.68)
suspecting that accused No.1- Nalini, her husband Vijay Dhpake,
accused No.2-Rinku, and accused No.7- Suresh Chandra might
have abducted his brother Raman in order to commit his murder.
On the basis of this report, Police Station registered an offence
punishable under Section 364 read with Section 34 of IPC against
the named persons. Police Inspector R.B.Bansod (PW-17) was
entrusted with the investigation of the case. On the same day, he
called accused No.1-Nalini and Accused No.2- Rinku to the Police
Station for interrogation. As nothing came out of that interrogation,
the said accused persons were allowed to go back. However, on the
same evening, he arrested both Nalini and Rinku and thereafter
accused No.3 – Kishor, accused No.4 – Tarachand in the mid night
of 12th May 2003. It is stated that accused No.2- Rinku and accused
No.3- Kishor, during interrogation confessed that on 8th May 2003
between 1.00 p.m.to 1.30 p.m. they along with accused
No.4-Tarachand and accused No.6-Satish with the help of accused
No.1-Nalini and accused No.5-Arun had committed murder of
Raman by strangulation in the cattle shed of one Nitin Rai. The
dead body of Raman was thereafter taken away in a gunny bag and
then thrown in a valley near “Deona Darshan Point”. Before
throwing the dead body, they had removed the clothes and wrist
watch from the dead body. They then burnt the gunny bag as well
as the rope used for strangulation including some documents
possessed by the deceased by pouring petrol at some other place at
a distance of 10 km. before Deona Darshan Point. They also agreed
to show the spot where the gunny bag, clothes and documents were
burnt and the place where the dead body was disposed. Pursuant to
the said revelation, the police party along with accused No.2-Rinku
and accused No.3-Kishor proceeded to the locations disclosed by
the said accused. Firstly, they showed the place of burning the
articles from where the remains in the form of ash and a bunch of
keys was seized. Thereafter, they proceeded to the other location
where the dead body was found lying in the valley near Deona
Darshan Point. The Investigating Officer R.B.Bansod completed the
necessary formalities of preparing memorandum of statements of
the said accused, Panchnamas, seizure panchnamas/memos,
Inquest panchnama etc. of the dead body. The dead body and the
recovered articles were then brought to Narkhed. The dead body
was identified by the complainant Madan Tonpe (PW-1) at the spot
i.e. Deona Darshan Point itself. The dead body was then sent to
Primary Health Centre, Narkhed for post mortem examination. After
the post mortem was conducted on the dead body, it was handed
over to the family members/relatives for funeral. The mother of the
deceased, Smt. Shantabai (PW 15) also identified the dead body of
her son when it was brought to their house. The offence was then
converted and registered under Section 364, 302 and 201 read with
Section 34/120-B of the IPC. Thereafter remaining accused i.e.
accused No.5- Arun, accused No.6-Satish and accused No.7-Suresh
Chandra were arrested.
3. The Investigating Officer R.B.Bansod carried out further
investigation. He recorded statements of the witnesses, seized the
vehicle/Tata Sumo used in the commission of offence for
transporting the dead body, recovered the wrist watch and gold ring
at the instance of accused No.3 - Kishor and accused No.6 - Satish
respectively. He prepared a panchnama of the place of incident in
the cattle shed of Nitin Rai, seized clothes of accused No.2 -
Rinku, accused No.3-Kishore and accused No.6-Satish and of
deceased Raman. He then verified the bunch of keys recovered from
the spot disclosed by the accused by applying it on the cupboard in
the house of deceased Raman. He also arranged for identification
parade of the wrist watch and gold ring. He seized some currency at
the instance of accused No.6-Satish. The muddemal/property,
seized articles, viscera etc. was then sent to the Chemical Analyser
for analysis. After the investigation was completed, police report
was filed in the Court of J.M.F.C., Narkhed, who committed the
case for trial of the accused before the Sessions Court at Nagpur.
The trial proceeded before the 3rd Addl. Sessions Judge, Nagpur,
who framed charges for offence punishable under Section 364, 302,
201 read with Section 34 in the alternative 120-B of IPC. All the
accused pleaded not guilty and to have been falsely implicated.
They claimed to be tried.
4. The prosecution examined in all 18 witnesses. On considering
the oral and documentary evidence adduced by the prosecution, thePage 6
6
Trial Court held that the accused persons conspired to kill Raman.
In furtherance of that conspiracy on 8th May 2003, Raman was
abducted by the accused persons and on the same day in the noon
he was killed in the cattle shed of Nitin Rai. Thereafter with a view
to dispose of the dead body of Raman and to destroy the evidence of
murder, they carried the dead body of Raman and threw it in the
valley near Pachmadi (in the State of Madhya Pradesh) at the spot
later on disclosed to the Police by the concerned accused. Similarly,
the articles such as gunny bag used for carrying the dead body and
rope used for strangulation, clothes worn by deceased Raman at the
relevant time as also the documents in his possession were burnt at
a different spot which was disclosed to the Police by the concerned
accused. The Trial Court held that the death of Raman was
homicidal death. Accordingly, the Trial Court convicted the accused
for their involvement in the concerned offence. The operative part of
the Trial Court judgment reads thus:
“1. Accused No. 1 Nalini W/o Vijay Dhapke is hereby
convicted vide section 235 (2) Cr.P. Code for the
offence punishable under Section 302 read with 120-B
of I.P.Code to undergo rigorous imprisonment for life
and to pay a fine of Rs. 2,000/- (Rupees two thousand
only) in default of payment of fine amount to suffer
further rigorous imprisonment for four months.Page 7
7
2. Accused No.2 Rinku alias Anand S/o Suresh
Chandra Roy is hereby convicted vide section
235(2) of Cr.P. Code for the offence punishable
under section 302 read with 120-B of I.P.Code to
undergo rigorous imprisonment for life and to pay a
fine of Rs. 2,000/- (Rupees two thousand only) in
default of payment of fine amount to suffer further
rigorous imprisonment for four months.
3. Accused no. 3 Kishor is hereby convicted vide
Section 235(2) of Cr.P. Code for the offence
punishable under Section 302 read with 120-B of
LP. Code to undergo rigorous imprisonment for life
and to pay a fine of Rs. 2,000/- (Rupees two
thousand only) in default of payment of fine
amount to suffer further rigorous imprisonment for
four months.
4. Accused No.4 Tarachand is hereby convicted vide
Section 235(2) of Cr.P. Code for the offence
punishable under Section 302 read with 120-B of
IP.Code to undergo rigorous imprisonment for life
and to pay a fine of Rs. 2,000/- (Rupees two
thousand only) in default of payment of fine
amount to suffer further rigorous imprisonment for
four months.
5. Accused No. 6 Satish is hereby convicted vide
Section 235(2) of Cr.P.Code for the offence
punishable under Section 302 read with 120-B of
I.P.Code to undergo rigorous imprisonment for life
and to pay a fine of Rs. 2,000/- (Rupees two
thousand only) in default of payment of fine
amount to suffer further rigorous imprisonment for
four months.
6. Accused Nos. 1 to 4 and 6 namely Nalini, Rinku,
Kishor, Tarachand and Satish are hereby convicted
vide Section 235(2) of Cr.P.Code for the offence
punishable under Section 364 read with 120-B of
IP.Code to undergo rigorous imprisonment for three
years and to pay a fine of Rs. 2,000/- (Rupees two
thousand only) each in default of payment of finePage 8
8
amount to suffer further rigorous imprisonment for
two months.
7. Accused Nos. 1 to 4 and 6 namely Nalini, Rinku,
Kishor, Tarachand and Satish are hereby convicted
vide Section 235(2) of Cr.P.Code for the offence
punishable under rigorous imprisonment for two
years and to pay a fine of Rs. 1,000/- (Rupees one
thousand only) each in default of payment of fine
amount to suffer further rigorous imprisonment for
two months.
8. The above sentence of Accused Nos. 1 to 4 and 6
namely Nalini, Rinku, Kishor, Tarachand and
Satish shall run concurrently
9. Accused No. 7 Suresh Chandra Roy is hereby
convicted vide Section 235(2) of Cr.P.Code for the
offence punishable under Section 201 of I.P.Code to
undergo rigorous imprisonment for two years and
to pay a fine of Rs. 1,000/- (Rupees one thousand
only) in default of payment of fine amount to suffer
simple imprisonment for two months.
10. Accused No. 7 Suresh Chandra Roy is directed
to surrender his bail bond forthwith.
11. Accused No. 7 Suresh Chandra Roy is acquitted
vide Section 235 of Cr.P.Code for the offence
punishable under Section 302, 364, read with
120-B of LP. Code.
12. Accused No. 5 Arun Nasre is acquitted under
Section 235 of Cr.P.Code for the offence punishable
under sections 302, 364, 201 read with 120-B of
I.P.Code and his bail bonds shall stand cancelled.
13. The period of undergone period by the accused
by set off against the above sentence of
imprisonment under Section 428 of Cr.P.Code.
14. The valuable muddemal property namely wrist
watch, golden ring and cash amount of Rs. 4,600/-
(Rupees four thousand six hundred only) be
returned to the complainant Madan S.o Wasudeo
Tonpe R/0 Narkhed after the appeal period is over.
15. The remaining muddemal property being
worthless be destroyed after the appeal period is
over.” Page 9
9
5. Aggrieved by the aforementioned decision, accused Nos.1 to 4,
6 and 7 filed separate appeals before the High Court being Criminal
Appeal Nos.367, 435, 444 and 452 all of 2005. The High Court
dismissed Appeal Nos.367, 435 and 444 of 2005 filed by the
concerned accused (Nos.2, 6, and 7; 1; and 3 respectively); and
allowed Appeal No.452 of 2005 filed by accused No.4, by a common
judgment dated 15th September 2008. After re-appreciating the
entire evidence adduced by the Prosecution, the High Court in
paragraph 44 of the impugned judgment summed up the
circumstances which led to the finding of guilt against the
concerned accused. The same reads thus:
“44. It was submitted by the learned counsel for the
appellants that the motive is not established and
everything is in the air. We are, however, satisfied that
the prosecution has proved that Raman wanted to
purchase the land of A-1 Nalini and her husband Vijay;
that he entered into transaction of purchasing the land
from them; that two agreements of sale were executed
by Nalini and her husband on consideration paid by
Raman to them; that on 8.5.2003 A-1 Nalini called
Raman to her house by giving him a ring; that
accordingly Raman went to her house after
withdrawing Rs. 58,000/- from the Bank of
Maharashtra, Branch Narkhed; that at that time A-3
Kishore Bhadke, A-4 Tarachand Vaidya and A-6 Satish
Bansod were also at the house of A-1 Nalini; that
thereafter Raman was not seen alive; that Tata Sumo of
Avinash Kalbande was engaged by A-2 Rinku Roy forPage 10
10
taking goods from the cattle shed of Nitin Rai to
Parasiya; that Sanjay Kalkar was the driver of the said
vehicle; that gunny bags were loaded in Tata Sumo in
the cattle shed of Nitin Roy; that A-3 Kishore Bhadke,
A-6 Satish Bansod and A-7 Suresh Roy travelled by the
said Sumo from Narkhed to Parasiya; that A-2 Rinku
Roy followed Tata Sumo on motorcycle; that in the
midnight the gunny bags were unloaded from Tata
Sumo at the house of A-7 Suresh Roy; that on the next
day morning Sanjay Kalkar brought Tata Sumo to the
house of owner thereof; that on 10.5.2003 Sanjay
Kalkar again came to take back Tata Sumo and
thereafter he never turned up.”
After analyzing the other circumstances and contentions, the High
Court concluded that the finding reached by the Trial Court that
the dead body discovered from the valley near Deona Darshan Point
was that of deceased Raman and that he met with homicidal death,
was unassailable. The High Court also considered the circumstance
of discovery of wrist watch at the instance of accused No.3, gold
ring of Raman and cash of Rs.4800/- (48 notes of 100
denomination) seized from accused No.6; including the blood
stained earth seized from cattle shed of Nitin Rai on 16th May 2003
under seizure memo (Exh.92) which as per the report of Chemical
Analyser (Exh.151) showed human blood. Human blood was also
found on the pant of Accused No.2 Rinku, which circumstance
remained unexplained. Similarly, full pant and shirt of accusedPage 11
11
No.3 Kishor which were seized on 15th May 2003 from his house
and on analysis by the Chemical Analyser it showed human blood,
which also remained unexplained. After taking over all view of the
matter, the High Court concluded that the complete chain of
circumstances unequivocally point out towards the guilt of accused
No.1- Nalini, accused No.2 -Rinku, accused No.3- Kishore Bhadke,
and accused No.6- Satish Bansod, excluding any hypothesis
consistent with their innocence. Accordingly, they were convicted
for offence punishable under Section 364/120-B, 302/120-B and
201/120-B of the IPC. The finding of guilt reached against these
accused by the Trial Court was once again reiterated by the High
Court.
6. As regards accused No.4-Tarachand, in paragraph 74 of the
impugned judgment, the High Court observed thus:
“74. On close scrutiny of the evidence we find that
though there is evidence to show that A-4 Tarachand
Vaidya was at the house of A-1 Nalini on 8.5.2003
when Raman came to her house and he was also seen
loading gunny bags in Tata Sumo, he did not travel by
Tata Sumo from Narkhed to Parasiya thereafter. From
the evidence it seems that the role of A-4 Tarachand
Vaidya is only to the extent of loading gunny bags in
Tata Sumo from the cattle shed of Nitin Roy. There is
no evidence to show that he was aware of the murder ofPage 12
12
Raman. Immediately after loading gunny bags in Tata
Sumo, he left the place and did not travel by Tata
Sumo from Narkhed onwards. From these
circumstances A-4 Tarachand Vaidya is entitled to get
benefit of doubt. Accordingly we extend benefit of doubt
to him and acquit him.”
7. While dealing with the case of accused No.7- Suresh, the High
Court in paragraph 75 of the impugned judgment observed thus:
“75. The role of A-7 Suresh Roy is only to the extent of
helping the other accused persons in removing the
dead body of Raman from Narkhed to Parasiya and
thereafter causing disappearance of the dead body and
other evidence of the offence. As such his conviction
for the offence punishable under Section 201/120-B of
IPC needs to be maintained.”
8. The High Court finally disposed of the appeals in the following
terms:
“(i) Appeal Nos. 367 of 2005, 435 of 2005 and 444 of 2005
are dismissed. Bail bonds of original accused
No.7/Sureshchandra Jagannath Rai stand cancelled. He
is directed to surrender within four weeks to serve out the
sentence.
(ii) Appeal No. 452 of 2005 is allowed. The conviction of
Tarachand s/o Shalikram Vaidya for the offence
punishable under Sections 364, 302 and 201 r/w 120-B
of IPC is set aside and he is acquitted of the said
charges. He be released forthwith if not required in any
other offence.”Page 13
13
9. Aggrieved by the aforementioned decision, accused Nos.1, 3
and 6 have assailed the same by way of separate appeals before this
Court. The argument was led by Advocate R.R.Deshpande for
accused No.3. He submitted that the prosecution case hinges on
circumstantial evidence. If the chain of circumstances is not
complete pointing towards the guilt of the accused, it would be
unsafe to uphold the finding of guilt though concurrent by two
courts below. He submits that the High Court has not analyzed the
circumstance about the nature of death of Raman as to whether it
was suicidal or homicidal death. He submits that circumstance held
against accused No.3 of recovery of blood stained clothes at his
instance is questionable. In that, the prosecution has failed to
establish the blood group much less that the blood stains pertained
to the blood group of deceased Raman. He submits that the
evidence regarding factum of motive produced by the prosecution is
very weak. In any case, motive is attributed to Nalini (A1) with
which accused No.3 has no concern. Therefore, that circumstance
cannot be used against him. He has also taken us through the
evidence of prosecution witnesses who have spoken about the
presence of accused at the scene of offence, relied by thePage 14
14
prosecution to substantiate the circumstance of last seen together.
He submitted that the evidence of PW-11 and PW-12 is not reliable.
Their statements were recorded after a long gap and the reason for
such delay has not been explained. Further, the prosecution
witness (PW 12) examined in support of this circumstance is a
chance witness. He was residing in another village. The prosecution
theory about homicidal death is doubtful. Even the evidence
regarding the manner in which the body of deceased Raman was
thrown is doubtful. For, no lacerated injury was found by the
Doctor while conducting post mortem. Only four injuries have been
noted which belies the prosecution theory that the body was thrown
in the valley from the height of around 600 ft. He submits that the
factual position mentioned in the memorandum of disclosure
recorded under Section 27 of the Evidence Act, relied by the
prosecution qua accused No.3, is inadmissible and cannot be taken
into account. In absence thereof, there is no legal evidence about
discovery of dead body of deceased or articles belonging to the
deceased ascribable to accused No.3. Thus, that circumstance
cannot be used against him. He submits that the said evidence is
inadmissible also because no signature of accused is taken on thePage 15
15
recovery panchnama. He then submits that the statement of
accused No.3 recorded under Section 313, Cr.P.C., the whole of it is
vitiated because it is a joint statement of all the accused recorded
by the Trial Court. In support of this contention, he invited our
attention to the said statement recorded under Section 313, Cr.P.C.
Lastly, he submits that benefit be given to accused No.3 on the
same reasoning as given to accused No.7. Learned counsel has
placed reliance on the decisions of this Court in the cases of
Jackaran Singh vs. State of Punjab1
; A.R. Khima vs. State of
Saurashtra2
; and Sunil Clifford Daniel vs. State of Punjab3
.
10. The accused No.1 is represented by Advocate Mr. Gagan
Sanghi. His argument essentially revolved around the two
circumstances held against accused No.1. Firstly, of motive and
secondly last seen together. He submits that no recovery has been
made at the instance of accused No.1 nor it is the case of
prosecution that accused No.1 was seen along with other accused
1
 AIR 1995 SC 2345 –Para 8
2
 AIR 1956 SC 217
3
 (2012) 11 SCC 205 Para 37 to 40Page 16
16
travelling in Tata Sumo vehicle wherein the dead body of deceased
Raman was carried away. As regards motive, he submits that the
prosecution theory about the illicit relations between accused No.1
Nalini and accused No.2 Rinku has been discarded by both the
courts below. The Trial Court as well as the High Court has,
however, accepted the prosecution case that there was some
transaction about land between accused No.1 Nalini and deceased
Raman over which the matter got escalated causing death of
Raman. The evidence in this behalf produced by the prosecution,
however, is very weak. PW-1 in his cross-examination says that he
had disclosed about the said fact to PW-17 (I.O.) i.e. about the
agreement executed between the parties. But PW-1 was not aware
as to why that fact is not mentioned in his statement recorded by
the police. Further, PW-17(I.O.) in the cross-examination has
denied of any such statement given by PW-1. PW-17 (I.O.) admitted
in his cross-examination that he had not investigated the matter
with regard to the land transaction. Moreover, PW-1 in his
cross-examination admits that he does not know who and in whose
name the stamp papers were purchased and how payments were
made. The other witness, who has spoken about the landPage 17
17
transaction is PW-15, mother of deceased Raman. She has spoken
about the phone call received on 8th May 2003 from Nalini. She
wanted to talk to Raman. Raman attended the phone call and
thereafter disclosed to PW15 that Nalini (accused No.1) had called
him to her house and he will go along with documents in respect of
agricultural land to get her signature. She has stated that deceased
Raman left the house at about 11.30 a.m. According to the learned
counsel, evidence of PW-15 cannot be taken into account as neither
the documents regarding transaction have been produced by the
prosecution nor the documentary evidence regarding the fact that
phone call was received by PW-15 has been produced. As regards
the factum of last seen together, it is submitted that the evidence of
PW-11 is unreliable and is replete with material omissions and
contradictions. Similarly, the evidence of PW-12 is also unreliable.
As a result, the prosecution has failed to substantiate the crucial
circumstance of last seen together with accused No.1. This being a
crucial link and as no satisfactory evidence is forthcoming to
indicate the complicity of accused No.1, the finding of guilt qua
accused No.1 would be unsafe. Further, being a case of
circumstantial evidence, the Court must analyze the evidence withPage 18
18
utmost circumspection and even if one crucial link is missing,
benefit must go to the accused. He has placed reliance on Nizam
and another vs. State of Rajasthan4
. On the issue of motive he
has placed reliance on Saju vs. State of Kerala5
 to contend that
motive by itself cannot be a proof of conspiracy. Reliance is also
placed on Keshav vs. State of Maharashtra6
 to contend that
conviction cannot be based solely on the basis of motive; and the
circumstance of last seen together becomes relevant only when the
death is proved to have taken place within a short time of the
accused being last seen. Reliance is then placed on Arjun Marik
and others vs. State of Bihar7
 to buttress the argument that the
factum of motive assumes importance in a case of circumstantial
evidence, if it is established from the evidence on record that the
accused had a strong motive and also an opportunity to commit the
crime; and that the established circumstances along with the
4
 (2016) 1 SCC 550 – Para 8,9,18-20
5
 (2001) 1 SCC 378
6
 (2007) 13 SCC 284
7
 1994 Suppl.(2) SCC 372Page 19
19
explanation of the accused, if any, exclude the reasonable
possibility of anyone else being the perpetrator of the crime then the
chain of evidence may be considered to show that within all human
probability the crime must have been committed by the accused.
Thus, the only circumstance of last seen together will not be
enough to complete the chain of circumstances to record a finding
of guilt against accused No.1. He has also placed reliance on the
other decisions, more or less dealing with similar aspect, in the case
of Mohibur Rahman & Anr. vs. State of Assam8
; Niranjan
Panja vs. State of W.B.9
; Sk.Yusuf vs. State of W.B.10; Shyamal
Ghosh vs. State of W.B.11; Kanhaiya Lal vs. State of
Rajasthan12; Malleshappa vs. State of Karnataka13; Ashok vs.
8
 (2002) 6 SCC 715
9
 (2010) 6 SCC 525
10
 (2011) 11 SCC 754
11
 (2012)7 SCC 646
12
 (2014) 4 SCC 715
13
 (2007) 13 SCC 399Page 20
20
State of Maharashtra14; Nizam vs. State of Rajasthan15;
Mousam Singha Roy & Ors. vs. State of W.B.16 and Sangili vs.
State of Tamil Nadu17 Reliance is also placed on the decision in
the case of Lohit Kaushal vs. State of Haryana18 about the
efficacy of statement of a co-accused under Section 27 of the
Evidence Act.
11. Ms. Anagha S.Desai, Advocate appeared for accused No.6. She
contends that that the dead body was recovered at the instance of
accused Nos.2 and 3. The recovery of gold ring at the instance of
accused No.6 is doubtful. The prosecution has not established the
special identity of gold ring and it has come on record that such
gold rings are freely available in the open market. Further, no blood
stains or any incriminatory evidence was noticed on the gold ring.
The accused No.6 was arrested on 13th May 2003 on which day his
14
 (2015) 4 SCC 393
15
 (2016) 1 SCC 550
16
 (2003) 12 SCC 377
17
 (2014) 10 SCC 264
18
 (2009) 17 SCC 106 – Para 18, 21Page 21
21
statement was also recorded. The recovery of gold ring, however, is
on 18th May 2003, while the accused No.6 was in police custody.
Similarly, the cash amount recovered at the instance of accused
No.6 was of no avail to the prosecution. It was a paltry amount as
compared to the amount withdrawn by Raman on 8th May 2003
from the Bank. Further, there is no evidence that the currency
recovered from accused No.6 was the same as withdrawn by the
deceased Raman from the Bank. No blood stains were found on the
clothes recovered at the instance of accused No.6. In the confession
statement of accused No.2, there is no mention of gold ring. The
signature of accused No.6 was obtained on a blank paper and it
was then used as a memorandum under Section 27 of the Evidence
Act. Recovery of clothes as well as gold ring attributed to the
accused No.6 was doubtful. Reliance is placed by the counsel on
Gulab Singh vs. State of U.P.19 to contend that recovery of ring of
deceased from the accused No.6 after such long gap and even if
accused No.6 failed to offer valid explanation for possession of the
gold ring, is at best liable to be convicted under Section 411 of IPC
19
 1995 Supp. (4) SCC 502Page 22
22
and not for the offence of murder. She submits that the accused
No.6 should be given the same benefit as given to accused No.7, if
not an acquittal as in the case of accused Nos.4 and 5.
12. Per contra, Mr. N.R. Katneshwarkar, Advocate appearing for
the State supported the findings and conclusions reached by the
two courts below. He submits that the argument of the appellants is
essentially on the basis of some minor discrepancies in the evidence
and not because of material omissions amounting to contradictions
or contradictory evidence of the prosecution. Two courts below have
had the opportunity to analyze the evidence threadbare; and the
view taken by the High Court being a possible view, does not merit
any interference. He submits that there is clinching evidence to
indicate the complicity of accused Nos.1, 3 and 6, who are the
appellants before this Court. No fault can be found with the courts
below for having convicted them for the stated offence. He took us
through the evidence of the concerned witnesses and pointed out
the findings of the two courts below which have analyzed the said
evidence exhaustively and analytically. Regarding the factum of
land transaction, the evidence of PW1 was unassailable. He submitsPage 23
23
that the prosecution has successfully substantiated the
circumstance of motive of accused No.1. The fact that no discovery
is made at the instance of accused No.1 would be of no avail to the
said accused. She was the master mind of the conspiracy to murder
Raman. There was dispute between accused No.1 and deceased
Raman in respect of land transaction and non-payment of the
agreement amount. The prosecution evidence has established that
Nalini had made a telephone call to deceased Raman on 8th May
2003. PW-15 has also spoken about the fact disclosed to her by
Raman before leaving the house at around 11.30 a.m. The
prosecution was also able to substantiate the fact that Raman after
leaving the house in the presence of PW-15, proceeded towards the
Bank and withdrew an amount of Rs.58,000/-. He went to the
house of Nalini where he was last seen. The dead body of Raman
was put in a gunny bag and transported by Tata Sumo vehicle. It
was then disposed at a spot disclosed by the accused Nos.2 and 3.
He submits that prosecution has succeeded in establishing motive
and last seen together which is good enough to affirm the finding of
guilt against accused No.1 Nalini. As regards accused No.6, he
submits that the recovery of ring which belonged to deceasedPage 24
24
Raman has been established by the prosecution. Besides that,
accused No.6 was not only last seen together with the deceased in
the house of Nalini but also while taking away the dead body of
deceased Raman in Tata Sumo vehicle. His involvement cannot be
equated with the role of accused Nos. 4, 5 and 7, which has been
found to be materially different by the Courts below. While refuting
the argument of accused No.3, he submits that the prosecution has
been able to establish that the death was homicidal death and was
caused due to strangulation by a rope. The prosecution has also
established the presence of accused No.3 at the relevant time. He
was not only last seen together in the house of Nalini accused No.1
at the relevant time but also in the Tata Sumo vehicle in which the
dead body of Raman was transported. Moreover, the location where
the dead body and articles of Raman were disposed has been
disclosed even by accused No.3. Reliance is placed on the decision
of this Court in the case of Sunil Clifford Daniel (supra) to
contend that absence of signature of the accused on the
memorandum of recovery would make no difference. The statement
of the accused No.3 recorded under Section 27 of the Evidence has
been signed by the accused. A separate statement of accused No.3Page 25
25
was recorded before the police proceeded to the location which was
jointly disclosed by accused Nos. 2 and 3. Learned counsel submits
that all the appeals deserve to be dismissed and the finding of guilt
and sentence awarded to the concerned accused be affirmed.
13. We have heard the learned counsel for the parties at length.
We were ably assisted by the learned counsel for the respective
parties who took us through the relevant depositions and
documents and the analysis done by the Trial Court and the High
Court in that behalf. We must appreciate the exhaustive judgment
delivered by the Trial Court, meticulously dealing with every aspect
of the evidence on record. We find that the High Court has also
analyzed the relevant piece of evidence on its own besides adverting
to the findings rendered by the Trial Court in that regard. In other
words, we have to deal with concurrent findings of fact on most of
the relevant aspects concerning the matters in issue. Our analysis,
therefore, must focus on the legal aspects emanating from the
concurrent findings so recorded and not to re-appreciate the entire
evidence.Page 26
26
14. In this backdrop, we may first advert to the main question as
to whether the circumstance of motive and last seen together, as
answered by the two courts below, is just and proper. As regards
the circumstance of motive, prosecution has mainly relied on the
evidence of PW-1 and PW-15. The criticism is that no documentary
evidence to buttress the factum of land transaction between
deceased Raman and Nalini (accused No.1) and about the telephone
call made by Nalini to Raman in the morning on 8th May 2003, as
stated by the said witnesses have been brought on record or any
attempt made by the Investigating Officer to recover the same. The
courts below have found that absence of documentary evidence in
the form of agreement of land transaction or a civil suit between the
parties, that cannot be the basis to outright discard the statements
given by the witnesses to the Investigating Officer and more
particularly the evidence before the court. They have spoken about
the dispute regarding taking of possession of the land. Further, the
accused No.1 in her statement under Section 313, Cr.P.C. has
stated that the members of Tonpe family wanted her land and they
cheated her and that Raman Tonpe and his brother Madan Tonpe
(PW-1) caused heavy loss to her agricultural land and also defamedPage 27
27
her. The courts below, therefore, held that absence of documents
regarding such transaction was not fatal. The evidence on record
was enough to accept the theory of demand for compliance of the
transaction from the side of Tonpe family, as the cause of motive.
The courts have also noted from the evidence that there was some
dispute in respect of hotel premises for which Vijay Dhpake
(husband of accused No.1-Nalini), had lodged a report against
accused No.2. That dispute was settled by deceased Raman. The
Courts below have found that the prosecution proved the following
circumstances. That deceased Raman was the Director of Rashtra
Mata Indira Gandhi Kanya Vidyalaya,Narkhed. The land of accused
No.1 Nalini and her husband Vijay Dhpake was adjacent to the said
school. Since Raman was looking after the family affairs of Tonpe,
he had entered into an agreement with accused No.1 Nalini and her
husband Vijay for purchase of their land. Accused No.1 and her
husband executed an agreement in favour of Madan and her elder
brother Pramod by accepting Rs.25,000/-. Another agreement of
sale was executed in favour of Pramod by accepting Rs.1,33,000/-.
The possession of the land was also delivered to Tonpe family.
Besides the said amount, deceased Raman had paid Rs.50,000/-Page 28
28
and Rs.30,000/- to Nalini towards the transaction for which
receipts were executed on separate stamp paper. This had
happened one year before the incident in question. The High Court
in paragraph 26 has dealt with the argument under consideration
and observed thus:
“26. It is true that neither the alleged agreements of
sale no receipts for payment made after the agreements
have been produced by the prosecution. However, we
cannot overlook the evidence to the effect that when on
the date of incident deceased Raman had left his
house, he had carried the documents about those
transactions with him. Neither those documents nor
the cash amount which was carried by deceased
Raman was recovered perhaps because all the
belongings of deceased Taman were burnt before his
dead body was thrown in the valley. As agreements of
sale might not have been registered and as such no
certified copies thereof could be obtained by the
prosecution in order to support its case. Even
otherwise this is not a civil proceeding in which
transactions of sale are to be proved by production of
documents. We can rely on oral testimony of PW1
Madan for this purpose. Hence we find that the sale
transactions between A-1 Nalini and Raman have been
proved by the prosecution.”
 Also in para 31 the High Court observed thus:
“31. It was urged by the learned counsel for the
appellants that the investigating officer has not verified
the record from the Telephone Exchange about the call
received at the residence of deceased Raman on
8.5.2003. In the absence of corroboration by the record
of Telephone Exchange, the testimony of PW Shantabai
should not be accepted. We are unable to agree with
this submission. We see no reason to disbelieve the
testimony of PW Shantabai. This would show that thePage 29
29
documents about transaction of purchase of land were
taken by deceased Raman with him and as those
documents must have been burnt. So there is no
question of production of those documents in order to
prove the transaction between A-1 Nalini and deceased
Raman.”
15. The question is whether the approach of the High Court
regarding the argument under consideration is correct. We may
hasten to add that Criminal Court trying the offence of murder was
not required to decide about the issue of title of the land or to
consider the relief of specific performance. The evidence given by
PW-1 and corroborated by PW-15, revealed that there was
transaction in respect of land between the accused No.1 and
Tonpe’s. That version could not be demolished in the
cross-examination. Another piece of evidence relied by the
prosecution is about the destruction of clothes and articles of
deceased Raman. The Police could only recover ash from the spot
along with bunch of keys. That lends support to the prosecution
case that the possibility of documents having been destroyed also
cannot be ruled out. Hence, it was open to the Trial Court as well
as the High Court to rely on the evidence of witnesses for the
limited purpose. The fact that deceased Raman while leaving his
house had carried some papers/documents with him has been
stated by PW-15, when he went to meet accused No.1 Nalini. The
counsel for the appellants and in particular accused No.1 had
drawn our attention to cross-examination of PW-15. He has also
drawn our attention to cross-examination of PW-1 to contend that
the factum of land transaction between Tonpe and Nalini was not
disclosed in the statement recorded by the Police under Section 161
of the Code. On close examination of the said cross-examination, we
found that the question posed to the witness was limited to the
initial statement and not to the supplementary statement recorded
by the Investigating Officer. A supplementary statement of the
witnesses was given to the Investigating Officer, which mentioned
the fact of land transaction, as was deposed by the witness in the
examination-in-chief. In other words, it was half hearted
cross-examination by the accused. No question was posed in
respect of the contents of the supplementary statement which was
also part of the charge-sheet and crucial to the relevant fact. The
answer given by Investigating Officer PW-17 therefore will have to
be understood in the same context. Confronted with this situation,
the argument of the appellants is that no documentary evidence
regarding the transaction is forthcoming. For the reasons already
mentioned, there is no tangible reason to discard the relevant fact
established by the prosecution witnesses in support of the
circumstance of motive.
16. The prosecution has also established the vital circumstance of
last seen together. That evidence is given by PW-11 and PW-12 in
particular. Their evidence will have to be juxtaposed with the
evidence of PW-15, who has spoken about the telephone call
received from Nalini and pursuant to which Raman left his house in
her presence with relevant documents/papers. The courts below
have accepted her version as truthful and reliable. That evidence
cannot be discarded on the basis of some minor discrepancies
pointed out during the course of argument. The finding recorded by
the two courts below with regard to PW-15 about the truthfulness of
her version is unexceptional. The evidence of PW-11 corroborates
the fact that deceased Raman had gone to the Bank for withdrawing
cash amount and then proceeded to the house of Nalini accused
No.1. He has deposed that Raman went inside the house of Nalini
and saw accused Nos.2, 3, 4 and 6 standing near the cattle shed of
Nitin Rai. While returning back he saw accused No.5 standing near
the water tank.
17. The fact of deceased Raman had gone to the Bank for
withdrawing the amount has been corroborated by PW-8 who was
Cashier in the Bank at the relevant time. Even the evidence of PW-8
has been found to be truthful and reliable. In other words, there is
credible evidence on record that Raman started from his house in
the presence of PW-15 as stated by her. He then proceeded to the
Bank for withdrawing amount of Rs.58,000/-, which obviously was
to be paid to accused No.1 Nalini. From the Bank he straight
proceeded to the house of Nalini. That fact stated by PW-11 stands
corroborated from the evidence of PW-12, who has deposed that he
had gone to Nalini’s house to finalise the deal concerning her
agricultural land for cultivation on yearly rent basis. He met her in
her house at about 11.30 a.m. to 12.00 noon and found that
Raman was sitting in the verandah of the house with her. He had
also seen accused Nos.2, 3, and 6 in the same room. The counsel
for the appellants no doubt made an attempt to discredit this
witness on the basis of some discrepancies in his evidence such as
the place where his statement was recorded by the Police - whether
in his house or in the Police Station and that he knew Raman for
the last 10 years and was therefore an interested witness. Further,
the fact stated by him that Raman was sitting in Varandah and
talking to Nalini and when he saw other accused were present has
not been disclosed to the Investigating Officer and unable to assign
any reason as to why he had not disclosed that fact. The evidence of
this witness has been analyzed by the Trial Court as well as by the
High Court. This witness has been found to be independent and
truthful. He has deposed about the relevant facts which have been
corroborated by the version of PW-11 about the concerned accused
persons last seen together. No other witnesses has come forward to
depose that after the meeting of deceased Raman with Nalini,
Raman was seen elsewhere at a later point of time. Thus, there is
sufficient evidence about the factum of last seen together. This
circumstance is further strengthened by the evidence given by other
prosecution witnesses (PW 9, 6 and 12), who had seen the
concerned accused persons loading a gunny bag in Sumo vehicle
after some time; and that accused Nos. 3 and 6 were also seen in
the vehicle carrying that gunny bag. The gunny bag, as found by
the two courts below was used to carry the dead body of deceased
Raman which was transported in a vehicle and then thrown at an
isolated location in the valley. There is no tangible reason to doubt
the correctness of the concurrent finding recorded by the two courts
below in this behalf. The Courts below have undertaken detailed
analysis of the evidence of the concerned prosecution witnesses.
Thus, the prosecution has succeeded in establishing the
circumstance of motive and last seen together indicating the
involvement of the appellants - accused Nos.1, 3 and 6 in
particular.
18. It was then argued that the High Court has failed to analyse
the fact as to whether death of Raman was suicidal or homicidal.
From the judgment of the Trial Court, we find that every aspect on
this issue has been considered threadbare from para 16 to para 25,
to conclude that the death of deceased Raman was homicidal death.
The Trial Court has examined the evidence of Dr.R.N.Gakare
(PW-16), letter of requisition (Exh.127) and the post mortem report
(Exh.129). The Doctor has explained the circumstances in which he
could notice the injuries on the dead body. He has categorically
deposed that although the dead body was decomposed because of
passage of time but identity of the person could be discerned. The
Doctor himself identified deceased Raman as he was known to him.
The other prosecution witnesses PW-1 and PW-15 have also
identified the dead body of Raman. The Doctor has also explained
the fracture injury noticed on the dead body, which, in his opinion,
was due to strangulation and asphyxia. Thus, we find no merit in
the contention that the nature of injury noted in the post mortem
report would rule out the possibility of homicidal death. The dead
body has been discovered at the instance of accused Nos.2 and 3
from the spot in a valley about 600 ft. deep. The Police reached that
spot on the basis of the disclosure made by the said accused Nos. 2
and 3 under Section 27 of the Evidence Act. The Police party along
with other witnesses had proceeded to the spot disclosed by
accused Nos.2 and 3 and recovered the dead body of Raman from
the valley.
19. It was contended by the counsel for the accused No.3 that the
evidence regarding discovery of the dead body of Raman cannot be
used against accused No.3. Inasmuch as, when accused No.3 gave
his statement and recorded in the form of Memorandum under
Section 27 of the Evidence Act, the Police already knew about the
spot where the dead body was thrown as it was disclosed by
accused No.2. It was contended that the statement made by
accused No.2 can be used only against accused No.2. This
argument has been negatived by the Trial Court after analyzing the
decisions which were brought to its notice, as can be discerned
from para 46 to para 53 of the judgment. The Trial Court found that
in the present case the accused Nos.2 and 3 made disclosure (about
the spot where dead body of Raman was thrown by them) one after
another in quick succession and that their statement came to be
recorded separately. The only thing that had happened was a joint
discovery made at the instance of both the accused Nos.2 and 3, on
proceeding to the spot along with the police. Section 27 of the
Evidence Act is an exception to Section 25 of the Act. Section 25
mandates that no confession to a Police Officer while in police
custody shall be proved as against a person accused of any offence.
Section 27, however, provides that any fact deposed to and
discovered in consequence of information received from a person
accused of any offence, in the custody of a Police Officer, so much
of such information, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered, may be proved. The
fact where the dead body of deceased Raman was disposed, was
disclosed by both the accused Nos.2 and 3 to the Investigating
Officer in the presence of SK Idris (PW 2) one after another on 12th
May 2003 at 3.05 hrs and 3.25 hrs. respectively. The discovery was
made only after accused Nos.2 and 3 were taken together by the
police to the spot in the neighbouring State (Madhya Pradesh),
where the recovery Panchnama was recorded bearing Exh.76A. In
other words, the disclosure of the relevant fact by accused No.3 to
the Investigating Officer preceeded the discovery of dead body from
the disclosed spot at the instance of both the accused Nos. 2 and 3.
It was not a case of recording of statement of accused No.3 after
discovery nor a joint statement of accused Nos.2 and 3, but
disclosure made by them separately in quick succession to the
Investigating Officer, preceding the discovery of the fact so stated.
The fact disclosed by them, therefore, and the discovery made at
their instance, was admissible against both the accused in terms of
Section 27 of the Evidence Act.
20. In the case of State (NCT of Delhi) Vs. Navjot Sandhu,20 this
Court has held that a joint disclosure or simultaneous disclosures,
per se, are not inadmissible under Section 27. A person accused
need not necessarily be a single person, but it could be a plurality
of the accused. The Court held that a joint or simultaneous
disclosure is a myth, because two or more accused persons would
not have uttered informatory words in chorus. When two persons
in custody are interrogated separately and simultaneously and
both of them may furnish similar information leading to the
discovery of fact which was reduced into writing, such disclosure
by two or more persons in police custody do not go out of the
purview of Section 27 altogether. What is relevant is that
information given by one after the other without any break, almost
simultaneously, as in the present case and such information is
followed up by pointing out the material things by both of them
then there is no good reason to eschew such evidence from the
regime of Section 27. Whether that information is credible is a
matter of evaluation of evidence. The Courts below have accepted
20
 2005 (11) SCC 600 (para 45)
the prosecution version in this behalf, being credible. Suffice it to
say that the disclosure made by Accused No. 3 about the relevant
fact, per se, is not inadmissible.
21. Reliance was placed on A.R. Khima (supra) to contend that
incriminating articles alleged to have been recovered at this
instance of the accused is inadmissible in evidence, if the police
already knew where they were hidden. The dictum in the said
decision is in the context of the fact situation of that case. The
Court found that the police already knew where the articles were
hidden. Further, the information was not derived from the accused
but from someone else, one of the other suspects. In that case, the
Sub-Inspector to whom the disclosure was made was not examined
by the prosecution. The Court also found that articles were not
hidden but kept in the manner which might be normally kept in
any average household. In the present case, as found by the
Courts below, the disclosure was made by the Accused Nos. 2 and
3 in quick succession. The police party along with witnesses and
both the accused thereafter proceeded to the isolated spot (in a
valley) disclosed by the said accused from where the dead body of
Raman was discovered. The concerned Police Officer as well as the
witnesses to the Memorandum of Statement recorded under
Section 27 have been examined by the prosecution and found to be
reliable and trustworthy. This reported decision, therefore, does not
take the matter any further.
22. It was then argued that the recovery Panchnama (Exh.76A) did
not contain signature of the accused and for which reason the same
was inadmissible. Even this submission does not commend to us.
In that, no provision has been brought to our notice which
mandates taking signature of the accused on the recovery
Panchnama. Admittedly, signature of accused was taken on the
statement recorded under Section 27 of the Evidence Act (Exh.76
and 77 respectively). The statement of accused No.3 (Exh.77) bears
his signature. Therefore, even this argument does not take the
matter any further.
23. In the case of the Jackaran Singh (supra), the Court opined
that the disclosure statement given by the accused regarding
conscious possession of the weapon did not inspire confidence.
One of the reason was that disclosure statement did not bear the
signature or the thumb impression of the appellant. The CourtPage 41
41
found that even, the recovery memo of the revolver and the
cartridges did not bear either the signatures or the thumb
impression of the accused. In the present case, the disclosure
statement bears the signature of accused Nos. 2 and 3 respectively.
The absence of signatures on the recovery memo (Exhibit 76-A)
would not make it inadmissible and it has been rightly taken into
account because of the other evidence regarding its authenticity
and genuineness. In the recent decision in the case of Sunil
Clifford Daniel (supra), in paras 37 to 40, the issue stands
answered against the appellants. Reliance was placed on the dictum
in paras 18 and 21 in the case of Lohit Kaushal (supra). In that
case, the Court found that the statement of accused who was
discharged by the Trial Court was hit by Section 25 and 26 of the
Evidence Act. The same was inadmissible in evidence. The Court,
however, observed that statement made to the Police can only be
used for the limited purpose provided under Section 27 of the
Evidence Act and that too only against the person making the
statement. In that case, the statement made by the concerned
accused who was discharged did not lead to the recovery of any
item whatsoever. In the present case, however, the statement ofPage 42
42
accused No.2 and 3 has been recorded separately and both the
accused accompanied the Police and disclosed the spot where the
dead body of Raman was thrown. On the basis of that disclosure,
the dead body of Raman and the remains of the burnt articles of
Raman were recovered for which that fact becomes relevant fact and
can be used against the appellants (accused Nos.2 and 3). In other
words, this decision will be of no assistance to the said appellants.
24. It was then contended that the circumstance of blood stained
clothes recovered at the instance of accused No.3 was questionable
because no evidence regarding the blood group or the fact that the
blood stains belonged to the blood group of deceased Raman is
forthcoming. Further, the recovery itself was doubtful. Even this
aspect has been considered by both the courts below and negatived.
The absence of evidence regarding blood group cannot be fatal to
the prosecution. The finding recorded by the courts below about the
presence of human blood on the clothes recovered at the instance of
accused No.3 has not been questioned. The Courts have also found
that no explanation was offered by the accused No.3 in respect of
presence of human blood on his clothes. Accordingly, we affirm the
concurrent finding recorded by the courts below in that behalfPage 43
43
including about the legality of such recovery at the instance of
accused No.3.
25. It was then argued by the counsel for accused No.3 that even
if circumstance of motive is proved, that can be relevant only
against accused No.1. That cannot be used against accused No.3.
This argument completely overlooks the charge for which accused
No.3 was tried, which included charge of conspiracy under Section
120-B of IPC. As aforesaid, the presence of accused No.3 at the
relevant time in the house of Nalini and also seen while loading the
gunny bag in Sumo vehicle and also travelling in that vehicle, leaves
no manner of doubt about his complicity in the commission of
offence.
26. In the case of Saju (supra), on facts of that case it was held
that the circumstances of last seen together and motive were not
conclusive to indicate hatching of criminal conspiracy. The Court
held that there was no evidence regarding the circumstance
attributing the pregnancy of the deceased to the appellant and his
insistence for abortion of the child. On that finding, the
circumstance of motive was answered against the prosecution andPage 44
44
in favour of the appellant. In that context the Court observed that
even otherwise motive by itself cannot be proof of conspiracy. It is
well established that, ordinarily, direct evidence regarding
conspiracy may not be forthcoming. Hence, in most of the cases,
the Courts have to infer conspiracy on the basis of established
facts. In the present case, on analyzing the facts and the events
that unfold, the Courts below have answered the factum of
conspiracy against the appellants-accused Nos. 1, 3 and 6.
Further, the prosecution did not rest only on the factum of last seen
together but also on other circumstances to point out the
involvement of the appellants in the commission of crime. In the
Case of Arjun Mariks (supra), which deals with similar contention,
the Court restated the settled legal position that interference by the
Supreme Court with concurrent finding of fact is justified only when
it is possible to take the view that the findings are manifestly
erroneous, unreasonable, unjustified or illegal or violative of some
Fundamental Rules of Procedure or natural Justice. In the present
case, concurrent finding recorded by two Courts below after
exhaustive analysis of the evidence, is that the same
unambiguously points out towards the involvement of thePage 45
45
appellants in the commission of crime. In the reported decision,
this Court has also observed that mere absence of proof of motive
for commission of a crime cannot be a ground to presume the
innocence of an accused if the involvement of the accused is
otherwise established. But in the case of circumstantial evidence
motive, does assume some relevance. If it is evident from the
evidence on record that the accused had an opportunity to commit
the crime and the established circumstances along with explanation
of the accused, if any, exclude the reasonable possibility of anyone
else being the perpetrator of the crime then the chain of evidence
may be considered to show that within all human probability the
crime must have been committed by the accused. On the facts of
the present case, we find no tangible reason to disturb the
concurrent findings recorded by the two Courts below.
27. The case of Nizam (supra) was also based on circumstantial
evidence. In that case, the courts below placed emphasis on the
last seen theory. After analyzing the evidence on facts of that case,
this Court held that none of the circumstances relied upon by the
prosecution and accepted by courts below can be said be pointingPage 46
46
only towards the guilt of appellants and to no other inference. In
that case, more than one inferences could be drawn on the basis of
evidence brought before the Court for which benefit of doubt was
given to the appellants. The Court noted several other lapses in
the investigation and missing links. And therefore, observed that
last seen together though an important link in the chain of
circumstances yet the court is required to take into account the
entire evidence in its entirety and ensure that only inference that
could be drawn from evidence, is guilt of the accused. In the
present case, however, two courts below have justly analysed the
entire evidence and considered all the circumstances and not
limited to the circumstance of last seen together. The concurrent
finding recorded by the courts below is that the only inference that
can be drawn is pointing towards the guilt of the concerned accused
in particular accused Nos. 1,3 and 6.
28. Similarly, in the case of Kanhaiya Lal (supra), the Court
observed that last seen together circumstance does not by itself
necessarily lead to inference that it was accused who committed
crime but there must be something more to connect the accusedPage 47
47
with the crime and to point out the guilt of the accused and none
else. As aforesaid, in the present case there is clinching evidence to
point towards the involvement of the appellants in the commission
of the crime. We find no tangible reason to deviate from the
concurrent findings of the courts below in that behalf.
29. Reliance placed on the dictum in the case of Sangili (supra) in
our view is inapposite. In that case, the court found that the
evidence of last seen together was not established and the factum of
motive was based on hearsay evidence. Further, except the alleged
recovery there was no other circumstance worth the name which
could be proved against the appellants. That is not the position in
the present case. For, the courts below have analytically
considered the prosecution evidence in its entirety to answer both
the counts against the appellants. The concurrent finding recorded
by the courts below in that behalf does not merit interference.
Reliance was placed on the decision in Gulab Singh (supra). In
that case, however, the Court found as of fact that the prosecution
had failed to establish the guilt of the accused as evidence againstPage 48
48
him on the factum of last seen together was deficient. In the present
case, however, the fact situation is different.
30. In the case of Shyamal Ghosh (supra), on the basis of the
evidence before the Court in that case, in para 74, the court
observed that reasonableness of the time gap is of some
significance. If the time gap is very large, then it is not only difficult
but may not even be proper for the court to infer that the accused
had been last seen alive with the deceased and the former, thus,
was responsible for commission of the offence. In the present case,
however, it is noticed from the evidence on record that deceased
Raman visited the house of Nalini accused No. 1 when the
appellants (accused Nos. 3 and 6) were also present in the house at
the relevant time. He did not come out of that house nor was seen
by anyone thereafter elsewhere. The dead body of Raman was taken
away in a vehicle for being dispose of, in which accused Nos. 3 and
6 also travelled. The two courts below have carefully analysed the
entire evidence to conclude that there was no other possibility
except that within all human probability the crime must have been
committed in particular by the appellants. It is well established thatPage 49
49
facts of each case must be appreciated on its own merits to draw
inference about the involvement of the accused in commission of
offence or otherwise. The case of Mohibur Rahman (supra) was
also a case of circumstantial evidence. On facts of that case, the
Court found that the circumstances were sufficient to conclusively
point out to the commission of murder of the deceased by the
accused, though the circumstances did not establish offence of
causing disappearance of the evidence. While dealing with the
factum of last seen together, the Court held that there must be a
close proximity between the event of accused last seen together with
the deceased. In the present case, as noted earlier, the courts below
have meticulously analyzed the prosecution evidence and have
found that the same established the guilt of appellants in the
commission of crime. On facts of the present case, no fault can be
found with the said concurrent findings recorded by the two courts
below. For the same reason, even the exposition in the cases of
Ashok and Mausam Singha Roy (supra) will be of no avail to the
appellants. As the same is in the context of facts of that case.Page 50
50
31. In the case of Malleshappa (supra) the court found that no
witness had spoken about who gave the information to the police.
Further, the deceased was forcibly taken on 12.07.2001, while his
dead body was found on 21.07.2001 and what transpired during
the intervening period was not brought on record. The court also
noted that when the death of deceased actually occurred was also
not established. In the present case, however, evidence establishes
the fact that the deceased Raman entered the house of Nalini
accused No. 1 and was not seen thereafter. His dead body was
placed in a gunny bag which was then loaded in a vehicle in close
proximity of deceased Raman entering the house of Nalini on the
same day. The gunny bag after being loaded in the vehicle was
taken away in which accused Nos. 3 and 6 also accompanied. The
medical evidence supports the prosecution case that the death of
Raman occurred around 8th May, 2003 and the Doctor who
conducted the post mortem opined that it was a case of homicidal
death. Page 51
51
32. In the case of Keshav (supra), the court held that in the case
of circumstantial evidence, conviction can be recorded on the basis
of motive. Further, the circumstance of last seen together becomes
relevant only if the death takes place shortly after accused and
deceased were last seen together. Even this decision is of no avail
to the fact situation of the present case, for the reasons already
discussed hitherto.
33. According to the learned counsel for the accused No.3, a joint
statement of all the accused was recorded by the Trial Court under
Section 313,Cr.P.C. This contention, in our opinion, is ill-founded.
We have examined the record and found that separate statement
under Section 313 of each accused has been recorded. It is a
different matter that their statements have been recorded in part on
different dates. That, in our opinion, does not vitiate the trial. Had it
been a case of all questions put to all the accused jointly and one
statement recorded by the Trial Court, it may have become
necessary for us to consider this argument. In the present case, we
find that separate statement of each accused under Section 313,Page 52
52
has been recorded on different dates. That is substantial
compliance of Section 313, Cr.P.C.
34. The argument of accused No. 3 that he may be given the same
benefit as given to accused No. 7 is also liable to be rejected. We
say so because, the High Court has given tangible reason for
treating the case of accused No. 7 differently. As regards accused
No. 3, there is consistent evidence that he was present in the house
of Nalini at the relevant time and also participated in loading of the
gunny bag containing dead body of deceased Raman in the vehicle
and then travelling in the same vehicle for disposing the dead body
in a valley. This distinguishes his role from that of accused No.7.
The role of accused No. 3 has been rightly analyzed by the courts
below to be similar to accused No. 6 and liable for punishment for
the offence in question.
35. Reverting to the argument of accused No. 1, we reject the
same in so far as the circumstance of motive and last seen together
as we have affirmed the concurrent findings of the courts below in
that behalf. The decisions pressed into service by the counsel forPage 53
53
the accused No. 1 have no bearing on the facts of the present case,
including against accused No.1.
36. That takes us to the argument of the counsel for the accused
No. 6 - that the dead body of the deceased was discovered at the
instance of accused Nos. 2 and 3 with which accused No. 6 had no
concern. The fact that accused No. 6 did not make similar
disclosure about disposal of dead body of Raman, as made by
accused No. 2 and 3, cannot absolve him. The courts below, in our
opinion, have rightly concluded that the concerned accused, in
particular accused Nos. 1, 3 and 6 were party to the conspiracy to
cause homicidal death of deceased Raman and for disposal of the
evidence of crime. We have already analyzed that aspect of the
matter in the earlier part of the judgment, which needs no
repetition.
37. The next argument of accused No.6 is that no blood stains
were noticed on the gold ring recovered at his instance. Even this
argument is devoid of merit. The fact that blood stains were not
found on the gold ring would not make the recovery inadmissible.
Similarly, the fact that the gold ring was freely available in the
market, would be of no avail to the said accused. The accused hasPage 54
54
not produced any evidence to explain the circumstances in which
the said gold ring came in his possession, which has been identified
by the prosecution witnesses as belonging to deceased Raman. The
fact that no mention was made about the said gold ring in the
statement of other accused, does not make the recovery doubtful
as the gold ring has been recovered on the basis of disclosure made
by the accused No. 6 himself after his arrest. On the same lines it
was contended by the counsel for accused No. 6 that the recovery of
cash amount from accused No. 6 cannot be used against him as
incriminatory evidence. In as much as, the prosecution has failed
to produce any legal evidence to establish the fact that the
currency recovered was part of the same amount which was
withdrawn by the deceased Raman from the Bank on 8th May,
2003. The fact that the entire amount of Rs. 58,000/- withdrawn
by the deceased Raman on 8th May, 2003 was not recovered by the
investigating agency also cannot be the basis to disregard the
complicity of accused No. 6, in view of the credible evidence about
his presence in the house of accused No. 1 Nalini at the relevant
time and of having assisted in loading the gunny bag carrying the
dead body of Raman in the vehicle and then travelling in the samePage 55
55
vehicle to dispose of the dead body of Raman. Evidence in this
regard being clinching, absence of legal evidence regarding the
source from where the currency notes had come in possession of
accused No. 6 will be of no avail. The fact that the no blood stains
were found on the clothes of accused No. 6 will also be of no avail,
considering the overwhelming evidence about other relevant
circumstances indicating his complicity in the commission of crime.
38. In the case of Sunil Clifford Daniel (supra) the court held
that non-matching of blood group or absence of report regarding
origin of blood, no advantage can be conferred upon accused to
claim benefit of doubt. This decision also deals with the argument
canvassed by the appellants about absence of signature of accused
on the seizure memo/recovery memo. The court rejected that plea
and held that merely because the recovery was not signed by
accused, it will not vitiate the recovery itself. Further, every case
has to be decided on its own facts. Accordingly, even this contention
of the appellants must fail.
39. The argument that the memorandum under Section 27 of the
Evidence Act was a fabricated document as the signature of
accused was obtained on a blank paper, does not impress us .ThePage 56
56
courts below have considered the evidence on record and found that
the memorandum making disclosure about the gold ring in
possession of accused No. 6 was admissible and trustworthy. We
are not inclined to disturb the concurrent findings recorded by the
two courts below in that behalf.
40. The next argument of the counsel for the accused No. 6 is
that even if accused No.6 had failed to offer any valid explanation
regarding possession of gold ring of deceased Raman, he can at best
be proceeded for offence punishable under Section 411 of IPC and
not for the offence of murder. This submission is obviously an
argument of desperation. For, conviction simpilicitor under Section
411 of IPC or under Section 201/120B of IPC as rendered against
accused No. 7 would be possible, if evidence on other crucial facts
was absent. In so far as accused No. 6, there is clinching evidence
to hold against him on the basis of last seen together, seen loading
the gunny bag in the vehicle and then travelling in the same vehicle
for disposal of the dead body. This evidence cannot be disregarded.
The finding recorded by the Trial Court in favour of the acquitted
accused or by the High Court in favour of the accused No. 7, is notPage 57
57
by disbelieving the evidence of the same prosecution witnesses. But,
it is in the context of the limited role of the concerned accused
established from the evidence of the same prosecution witnesses.
The accused No. 6 cannot take advantage of that finding, in view of
overwhelming evidence of his complicity in the commission of crime.
41. In view of the above, we hold that the appeals filed by accused
Nos. 1, 3 and 6 respectively, are devoid of merits.
42. We accordingly uphold the finding of guilt as against these
accused Nos.1,3 and 6 as recorded by the courts below as also the
sentence imposed in respect of the offence committed by them.
43. Hence these appeals fail and the same are dismissed. Accused
No.1 Nalini Dhapke, appellant in Criminal Appeal No.854/2010 and
accused No.6 Satish, appellant in Criminal Appeal No.11/2015 are
on bail. Their bail bonds shall stand cancelled and they are directed
to surrender before the Trial Court within four weeks from today for
undergoing the remaining period of sentence.Page 58
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…………………………….J.
 (Jagdish Singh Khehar)
…………………………….J.
 (Arun Mishra)
 .……………………………J.
 (A.M.Khanwilkar)
New Delhi,
Dated: January 3, 2017

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